The Formalisation of Research Ethics Andrew Boon
definition, with research as it ought to be conducted. In recent years the focus has changed from dilemmas confronted in the field, seen as individual responsibilities for the researcher, to embrace a range of institutional, disciplinary and structural issues. The main focus of this paper is the change in practice brought about and presaged by these processes, particularly in the socio-legal sphere. The paper attempts this task in two parts. The first describes the pressures behind the trend of formalisation. The second explores the way in which formalisation reshapes ethical issues for socio-legal research. This task is approached through a chronological examination of the research process in its constituent phases, from intention to evaluation. The context discussed here is broadly that relating to the United Kingdom, although research and publication from other legal and research jurisdictions is cited where relevant.
A. ORIENTATION
The formalisation of research ethics in British universities is a development fuelled by globalisation and commercialisation. One of many localised drivers is the transformation of the European higher education sector under the Bologna process, itself a reflection of worldwide competition for the brightest students, most innovative researchers and the social capital that they bring. Since the European Union has no formal jurisdiction in the field this can be seen as an example of Foucault’s concept of ‘governmentality’,1 which emphasises the role of knowledge systems in the institutional construction of ‘truth’ and ‘legitimate’ power, and which therefore enters the normative realm of ethics. Through this transformation, higher education’s traditional values and ideals, ‘students who “learn for life”, researchers who enjoy “the freedom of teaching and research” and a state that considers education as a public good, or even a human right, are replaced by a view of education as a private career investment.’2 This is assigning a new role for research, both an audited commodity and a tool of economic growth.3 While the place of research in the universities is reconceived, the movement of research ethics up the agenda of higher education institutions can be seen to reflect a different aspect of governmentality, the demand of the neo-liberal state for informal governance, which seeks to extend ethical concerns to social and business activity. Allied to direct political appeals, higher education institutions experience localised pressures, as concerns over privacy issues, the security of new technologies and the directions and implications of scientific discovery and quality management. The ramifications are widespread, from specific demands for ethical governance4 to debates within academic disciplines regarding purpose and values.
The field of research ethics has enjoyed a surprising degree of consensus around fundamental values. Respect for autonomy, non-maleficence (not doing harm), beneficence (doing good) and justice transcend disciplinary boundaries, but do so because of their high level of abstraction. Proponents of these universal values recognise that, as research regulation develops, factors such as efficiency, institutional rules, law and client acceptance splinter values and create tensions between them.5 Philosophical perspective also plays a part in ethical problem-solving and decision-making in the field, particularly when either provisions in codes, or broad ethical principles, conflict. Beauchamp and Childress argue that abhorrence of paternalism leads us to place autonomy over beneficence, that is, to place individual relationships over broader social good. While these issues are likely to remain in flux, it is anticipated that formalisation will clarify the relative importance of values. Indeed, it is anticipated that this process will elevate further the autonomy of participants as the key value for research. This will have profound implications for field methodology.
B. THE FORMALISATION TRAJECTORY
The three linked pressures towards formalisation of ethical obligations in research are legalisation, regulation and institutionalisation. The research ethics field is constituted by three normative areas; legal, regulatory and moral. Law provides the outer boundary of the system of research ethics, touching on areas as diverse as intellectual property rights and rights to reputation. Law also, increasingly, intrudes in the other areas. There has been a recent increase in legislation in areas once regarded as matters of individual conscience or professional duty,6 notably the Human Rights Act 1998, which brings research activity within the scope of several of the articles of the European Convention on Human Rights. The right to publish is protected by the right to freedom of expression7 and a right to respect for private and family life8 supports potential research participants’ wish not to participate in research, or to do so only on terms. The most likely point of conflict between these rights, the issue of confidentiality, is perhaps less problematic than might be imagined because of data protection legislation. Additionally, data protection requirements are the main vehicle for formalisation of the ethical relationship between researchers and those they research. The legislation, the Data Protection Act 1998, as amended by the Freedom of Information Act 2000, establishes a regime affecting the obtaining, holding, using or disclosing of personal data.
The regime prevents unauthorised access to personal and confidential data identifiable, or potentially identifiable, as that of an individual. Data that cannot be linked to an individual is not covered by the Act, but may be protected under the common law relating to confidence.9 Data are classified as sensitive personal data and other data, and the ability to collect data in either category is subject to conditions.10 Information about individuals held on computer, or on paper, and sorted by reference to individuals is subject to the Act, affecting both quantitative and qualitative research.11 Although the definition of personal data gives the Act a potentially narrow application,12 obtaining consent to any data collection and processing will increasingly become the norm. The Act also constrains the handling of data, so that researchers conducting research covered by the Act are under an individual obligation to register with an Information Commissioner specifying the nature, purpose and intended recipients of the intended data. The Commissioner can investigate complaints, prevent processing of data and order its destruction.
The Act provides limited exemptions for research, provided that the data are not used to support measures or decisions with respect to particular individuals and are not processed in such a way as to cause substantial damage or distress.13 In such circumstances, the right of data subjects to access data is exempted provided that they are processed so as to comply with the relevant conditions, and provided also that the results are not in a form that permits the identification of data subjects.14 Another significant exemption is that data processed in compliance with the relevant conditions and only for research purposes may be kept indefinitely.15 The prohibition against further processing in principle 2 is also abrogated if such further processing is for research purposes.16 Subject to these limited exceptions, the obligations in the data protection regime relating to collecting, handling and storing data still obtain and particularly requirements for the provision of information, and the conditions of storage and processing.17 The complexity of the Act exacerbates pressure on institutions to ensure that the legal requirements are observed, increasing the likelihood of regulation and pushing it into the area formerly defined as an area of individual moral concern for researchers.
Regulation of data collection and handling has increased pressure by home universities, grant-giving institutions18 and external regulators for greater institutional control of research19 and for professional and disciplinary-based organisations to create codes of conduct and develop educational programmes. Tighter regulation of research may be achieved most effectively by collaboration between disciplinary-based associations and employing institutions. The Associations can provide ethical guidance, with university ethics committees best placed to provide control and enforcement. Whether the work of the Associations will be simplified by creating one ethics regime for the social sciences is moot, however, with current plans limited to providing guidelines for scrutiny and practice, and with more detailed guidelines for different areas of research.20 The institutional incentive to formalise research ethics stems from increased consciousness of the ethical obligations of universities and anxiety over the risks of injury to reputation, and of liability inherent in uncontrolled research activity.21 A well-established model of ethical oversight operates in the medical field with peer review of research proposals22 operating at local and regional levels. The spread of the medical model to the social sciences will end the low visibility that ethics has had in socio-legal research.23
The narrow aim of ethics committees, scrutiny of the research proposals, inevitably produces new issues for consideration. It is predictable that these university committees will acquire jurisdiction over tangential issues such as the treatment of junior researchers and research assistants, the handling of publication credits and intellectual or other property rights. This may result in removal of some long neglected blemishes,24 providing an infrastructure of support for research training, mentoring, and counselling25 that places the relationship of universities with research staff on a sounder ethical footing and reinforces the cultural and structural support for ethical practice.26 But ethics committees will be a mixed blessing. Replacing professional responsibility with bureaucratic control will, in less enlightened environments, carry a risk of inflexible bureaucracy, rigidifying procedures and increasing paperwork.27 A tendency to withdraw within the safety of routines and procedures28 will constrain risk-taking. For example, some features of qualitative work, inductive methods, emergent design, deliberative sampling and small samples risk misunderstanding and leave much to be worked out in the field, tempting ethics committees to over-specification. Ethics committees need protocols and procedures that recognise differences in methodology and qualitative researchers must specify the procedures that underpin and reinforce the ethicality of qualitative work; formal observance of the principle of consent, ‘member checking’29 and keeping trail notes, a history of the research process that sheds light on the data.30 In whatever ways these matters are handled, the interface between legal and regulatory requirements and ethical decision making in the field will be renegotiated. The remainder of this chapter explores areas of potential conflict and interaction between the elements of the research ethics field.
C. IMPLEMENTATION
Ethics pervade every stage of research, from conception to evaluation. Ethics therefore affects all socio-legal scholars, not just the empirical researcher in the field. What is seen as an ethical issue is socially constructed as, for example, the academic role is shaped by debates about the role and value of universities and research.
1. Intention
A controversial question is whether academics have an ethical obligation to research, arising from the universities’ historic and contemporary mission to generate and disseminate knowledge, from terms of employment or from the synergy between high level teaching and research activity.31 The issue became highly political when the higher education sector mobilised to resist government proposals to focus research resources on elite universities through the Research Assessment Exercise, in the process creating ‘teaching only’ institutions.32 The ethical dimension of such debates are wide, ranging from arguments about the disadvantage faced by students not taught in a research rich environment33 to the collegiality engendered by individual and collective responsibility for the standing of researchers.34 The linkage of the existence and amount of research funding to research performance weakens the argument that an obligation arises merely from working in a university. The academic contract of employment is also a tenuous basis because academics specialise on both sides of the teaching and research divide. The question of whether socio-legal scholars have special obligations arises from concerns about the level of empirical fieldwork being conducted and the replacement of the scholars leaving the socio-legal field.35 This may create obligations on the research community to be more active or to provide a new generation with training and support. Another issue arises from attempts to make more explicit the relationship between research and teaching,36 despite evidence that there is no correlation between research productivity and teaching effectiveness.37 It is an implausible argument that academics teach in their research areas, irrespective of its relevance to their audiences. This is fortunate since many socio-legal researchers teach doctrinal subjects and their research is often outside a standard law curriculum.
2. Conception
The purpose of socio-legal scholarship is not obvious and to some extent changes over time. Selznick argued that there is little point to studying normative behaviour for its own sake.38 For him, empirical work in the field is theoretically grounded in a quest to explain why some norms are given the sanction of law. The collaboration between law and sociology is an intermediate stage in the evolution of the core principles of a version of natural law. This view ignores the impact that socio-legal work has on policy and on the development of law,39 of the taken for granted assumptions and norms associated with legality40 and on the boundaries and horizons of legal study. Socio-legal work is now inextricably linked to the proposition that legal institutions cannot be understood without seeing the entire social environment.41 While it is now broadly accepted that socio-legal work need not exist in support of jurisprudential theory, Selznick’s injunction that socio-legal studies should only be linked to wider theory remains arguable to the extent that the academic concern should be disciplinary development, and subversion of accepted power relations, rather than service of policy or speaking to power.42
The tradition in university research is that ‘choice of method and subject is a purely personal one’,43 although three areas of potential threat constitute loose boundaries of enquiry; subjects that are considered private, stressful or sacred, subjects that may incriminate or stigmatise and subjects that impinge on political alignments and vested interests.44 Socio-legal topics may be found in each of these areas, raising questions about appropriateness of research and, conversely, whether important topics are ignored for fear of exciting controversy, with negative consequences for understanding important areas of social activity.45 The law and society movement in the United States and the socio-legal movement in the United Kingdom traditionally embraced a range of methodologies, disciplines and perspectives. They existed as a counterpoint to traditional doctrinal emphasis and are defined by what they are not, as much as by what they are. While there is no single methodology employed in socio-legal work, its distinctiveness hinges on the use of sociological research methods in fieldwork, and the use of sociological modes of analysis rather than purely legal analysis.46 The issue of subject matter that arises in relation to much of the work done under the socio-legal banner is, however, often one of theoretical perspective rather than methodology.
It is generally accepted that the perception of any subject depends on the position taken in relation to it, one’s perspective or standpoint. The term standpoint has been defined as a site occupied in order to produce knowledge and practice of which researchers are aware in a special way,47 and the ‘special way’ is often a position of interest, conceived of as engagement, that seeks to reveal real relations between humans that are, on the surface, invisible.48 Examples of the conscious development of standpoint include feminist and socialist theorists, sharing common roots,49 a desire to understand social power relations and make such relations more satisfactory.50 While feminism embraces a range of perspectives and approaches, those at the radical end of the feminist spectrum posit that it is necessary to see the world from the position of women in order to reveal the nature of, and reasons for, women’s oppression otherwise hidden in male-generated paradigms and generally accepted in the ‘malestream’. Standpoint theory provides a position from which to re-conceptualise the world in a way that reflects women’s interests and values in order to suggest new ways of being. By reshaping the way in which the world is perceived feminists, like Marxist researchers,51 reason that it may be possible to change the way it is.
While, practically, certain theoretical perspectives are distinctive because they are taken with a view to espousing a cause,52 choice of methodology also represents a perspective on the subject of study. The plethora of contemporary socio-legal traditions approach research from different perspectives, contradicting the rationale of the positivist tradition’s claim to merely discover and understand ‘reality’ through a standardised examination of evidence. Postmodernists, arguing that knowledge is rooted in the values and interests of social groups, wish to understand the construction of discourses, the frameworks of ideas within which other ideas can be understood. A constructionist viewpoint is that no knowledge is neutral; it is necessary to view the world from a chosen perspective in order to understand just one strand of the multiple realities that are ‘truth’. While theoretical positions can be construed as bias, explicit recognition of standpoint is consistent with modern conceptions of knowledge emphasising the elusiveness of ‘reality’. Conceptually, therefore, perspective affects every stage of research, from the theoretical position that underpins the research idea, through selection and implementation of method to interpretation and presentation of data.
Despite the wide range of theoretical positions informing research agendas, the range of methods available to socio-legal scholars is limited to three main kinds of investigation; textual, quantitative and qualitative. There are wide variations in these broad categories, with text-based research potentially covering everything from historic archives to law reports, quantitative research including various types of survey method, and qualitative research everything from interviews to ethnography. Some methodologies are dictated by, or associated with, particular theoretical backgrounds. The historical sweep favoured by grand theorists requires that a large amount of text, and quantitative data, be distilled. In contrast, postmodernists, favouring small, incremental understandings of ‘reality’, and the debunking of grand theory, prefer small but intensive qualitative studies and detailed textual deconstruction.
Ethical developments also stem from the interaction between perspective and methodology. In terms of methodology, for example, Lincoln and Guba assert that qualitative research is a superior paradigm, methodologically and ethically, to quantitative methodology.53 Part of its justification is that the role of the researcher in producing new knowledge is explicitly recognised, rather than hidden behind the conventional ‘scientific’ pretensions and value neutrality of quantitative methodology. Therefore, it is arguable that clear adoption of a standpoint improves the process and outcomes of fieldwork,54 a proposition clearly reflected in feminist researchers’ preference for qualitative methods, and the extensions they have proposed. Standpoint theory, for example, provides a basis for feminist empirical researchers to explicitly use the tacit knowledge and understanding that derives from their own experience55 so that other women might benefit from their research.56 This is an extension of Lincoln and Guba’s assertion that research participants should be consulted about the interpretation of data, a process that they call ‘member checking’,57 and the standpoint theorist’s position that (women) participants in research should be treated as partners, determining the object and methods employed. The corollary of this, and a view sometimes advocated, is that feminist researchers should run counter to conventional norms for scientific research and forsake pretensions of neutrality. Such ideas may have receded as feminist standpoint theory, stressing the unity of women, has blended with feminist postmodernism, stressing their differences, and a feminist empiricist tradition, yet feminists continue to debate the issue of partial perspective, objectivity and the relationship between methodological theory and practice.58
The interposition of university ethics committees between researchers and funding bodies promises interesting debates on the ethics of ‘partisanship’ in research. The significant role that feminist researchers have played in articulating the ethical argument for shifting the balance of power in the research relationship towards ‘the subjects’ of research, and the general acceptance of this shift by the research community, underlines the importance of ethics committees heeding divergent views. The issue of partisan theoretical approaches raises interesting issues about perspective and particularly standpoint theory. While the proposition that no research is value-free is unanswerable, the theoretical foundation for the position that ‘some perceptions of reality are partial and others true and liberatory’, continues to be debated.59 Nevertheless, the recognition sharpened by standpoint theory, that knowledge is situated and perspectival, underlines the importance of specifying the implications of a theoretical stance in researching an issue, in much the same way as empirical researchers acknowledge the limitations of a chosen methodology in tackling a particular research question. When issues of perspective and methodology have been identified, the ethical debate lies in balancing the values of veracity and justice. With fields changing almost constantly, and with the importance of perspective to understanding the truth claims of research, it is important that researchers identify their perspective on their field of study, for the benefit of readers who do not know their work. Explicit recognition of perspective remains the best way of maintaining the integrity of research and supporting an area of academic life still tolerant of relativistic values.
3. Design
Of necessity, research design is the area in which University research committees will wield the most influence. In the medical field, Local Research Ethics Committees have well-established procedures that tend to address three sets of questions in considering research proposals: whether the proposed project asks a reasonable or important question; whether the procedures that subjects will undergo are acceptable and whether they will be protected in terms of consent, confidentiality and compensation.60 While slightly different considerations may arise in non-medical research, this formulation raises some interesting issues about research design in the socio-legal sphere and so is adopted here.
4. Justification
In medical research it is considered unethical to conduct pointless research, that is when research addresses a research question that has already been satisfactorily answered, uses an inappropriate methodology or is based on an inadequate understanding of the methodology of choice.61 Each of these is a matter of judgement likely to be even more complicated outside the medical sphere where, at least, there is likely to be some measure of agreement about standpoint and methods. The contested issue in medical science, what constitutes a ‘satisfactory answer’, imposes the burden on researchers of citing all previous work and defining the scope of proposed research so as to clearly indicate the novel area of investigation. Selecting an appropriate methodology requires researchers to understand what available alternatives involve and what they have to offer. This leaves a question mark over the ethicality of conducting research where there are insufficient resources available to determine fully the issue addressed. This applies particularly to quantitative work, where sample size is often crucial to reliable and valid conclusions.62 ‘Underpowered’ studies, however, arguably make some contribution to the development of understanding of an issue and are routinely accepted by ethics committees.63 A particular area of difficulty, however, is research conducted by students. This may be conceived of as research training but, if it involves human participants, whether there is sufficient time, expertise and resource available to conduct the research bears significantly on the issue of whether the research can be justified as training rather than for the knowledge produced.
5. Acceptability and Implementation
With increased levels of sensitivity to the human rights of participants, or those affected by the research, researchers intending to delve into areas of sensitivity for some participants should be required to justify their plans. In such cases, it might be argued that the importance of the research and the nature of the subjects are both matters that are crucial in deciding whether the intrusion is justified.64